Yogesh Barthwal vs State Of Uttarakhand And Others

Vipin Sanghi, CJ

The petitioner has preferred the present writ-petition to assail the office memo dated 20.07.2022, whereby his services as Assistant Professor (under open-general category) in the Department of Mechanical Engineering in the respondent-G.B. Pant Institute of Engineering and Technology, Ghurdauri, Pauri Garhwal by the appointment letter dated 18.04.2019, has been set aside and he stands terminated with immediate effect.

There were six posts of Assistant Professor advertised by the respondent-Institute out of which four belonged to the General Category, one was reserved for the Scheduled Caste and one was reserved for the OBC Category. In that selection process, the petitioner was selected against an open category seat.

Two writ-petitions were preferred before this Court to assail the said selection process - one by Amit Kumar and another by Mohd. Vaseem being WPSB No.314 of 2019 and WPSB No.315 of 2019. These petitions were decided on 06.03.2020 and 11.06.2020 by the Division Bench. The Division Bench of this Court found that the selection process was erroneous inasmuch as the candidates who were adjusted against the aforesaid two reserved seats had, in fact, scored more marks than those given appointments under the reserved category. The Court, therefore, directed that they shall be appointed against the open / general category seats and their reserved seats would be made available to the next meritorious candidates falling in their respective reserved category seats.

While passing the judgment in WPSB No.315 of 2019 preferred by Mohd. Vaseem, the Court directed the Board of Governors of the respondent-Institute to take a decision regarding the marks awarded to the petitioner-Mohd. Vaseem at the earliest and fill up the post of Assistant Professor (Mechanical Engineering) reserved in favour of the OBC category with the most meritorious candidate belonging to the said category below the 5th respondent in the said writ-petition, who, though, belonging to the OBC category, was more meritorious than some of the candidates selected in the open/general category. The 5th respondent was, therefore, directed to be appointed against the seat in the open/general category.

It appears that only three members of the Board of Governors held the 27th meeting wherein they proceeded to re-evaluate the marks of not just Mohd. Vaseem but the others as well which included the petitioner, the marks of the petitioner were increased from 68.21 to 72.21 and the marks of Mohd. Vaseem were reduced from 68.72 to 67.72. The petitioner has placed his reliance on the said marks awarded to him upon re-evaluation.

What transpired was that the Board of Governors held its 31st meeting on 14.05.2022 found that the aforesaid meeting of the Board of Governors i.e. 27th meeting held on 05.10.2020 was without quorum. Consequently, the Board of Governors passed the resolution no.31.10, which is as under:-

“31.10 Regarding Implementation of Orders of Hon’ble High Court, Nainital in WPSB 314/2019 and WPSB 315/2019

In compliance with orders of the Hon’ble High Court, Nainital in the WPSB 314/2019, the Board decided that Mr. Lokesh Nair will be given the appointment to the post of Assistant Professor in the department of Mechanical Engineering in the open/general category and the appointment of Mr. Manoj Pathak to the post of Assistant Professor in the department of Mechanical Engineering under open/general category is set aside i.e. terminated.

In compliance with orders of the Hon’ble High Court, Nainital in WPSB 315/2019, the Board decided that Mr. Bhanu Pratap will be given the appointment to the post of Assistant Professor in the Department of Mechanical Engineering in the open/general category and the appointment of Mr. Yogesh Barthwal to the post of Assistant Professor in the Department of Mechanical Engineering under open/general category is set aside i.e. terminated.

The Board has taken cognizance of minutes of 27th meeting of BOG in which the marks awarded to the candidates were changed by the Board. Since, the quorum of the Board was not complete as per the Bye-Laws of the institute. Therefore, the minutes of the 27th BOG meeting stands null and void. Further, the Board decided to constitute the following committee to examine the marks awarded to Mohd. Vaseem by the selection committee as per order of the Hon’ble High Court, Nainital dated 11.06.2020 passed in the WPSB 315/2019:-

1.

Dr. R.P.S. Gangwar

Director, WIT Dehradun, Uttarakhand

- Convenor

2.

Sri Hari Singh

Director, Technical Education, Uttarakhand

- Member

3.

Sri Sanjay Singh Tolia

Joint Secretary (Finance), Uttarakhand Government

- Member

The above committee will submit its report within 15 days. The report of the committee will be put up in the BOG meeting to take final decision in the appointment of candidate for the post of Assistant Professor in the department of Mechanical Engineering in Other Backward Class category.”

Consequently, the Board of Governors decided that Bhanu Pratap, who had secured 69.42 marks, should be adjusted against the open/ general category seat which the petitioner was required to vacate since he had secured 68.21 marks, which was the lowest amongst the open/general category candidates.

The submission of learned counsel for the petitioner is that the Board of Governors had re-evaluated his marks and increased the same by ‘4’. He submits that since the petitioner was awarded 72.21 marks after re-evaluation, he was at the top of the merit list and, therefore, he could not be removed. He further submits that the petitioner has been serving as an Assistant Professor for the last three years and now, he has been visited with the termination letter.

We do not find any merit in the aforesaid submissions of the petitioner. The petitioner cannot place reliance on the marks awarded to him on re-evaluation as this was done beyond the direction issued by the Court in WPSB No.315 of 2019. The re-evaluation was done by only three members of the Board of Governors. There is a quorum of five and, for this reason, the Board of Governors in the subsequent 31st meeting held on 14.05.2022 did not accept the re-evaluation of marks done to the petitioner. Shri Bhanu Pratap, admittedly, had scored 69.42 marks and his marks also could not have been re-evaluated.

That being the position, he was entitled to be adjusted against the open/general category and which obviously meant that the petitioner had to make way since he secured the lowest marks amongst the open/ general category candidates selected earlier.

Since, the petitioner did not have right to be appointed to the said post in the first place, so, he cannot claim a right to continue in the said post.

In view of the aforesaid observations, we do not find any merit in this writ-petition and, accordingly, the same is dismissed.